The ongoing issue of K-12 funding in Washington, as well as the corresponding lawsuits and determinations of the state’s supreme court in this area, once again appears to be coming to the fore in the legislature.
HB 2636 and SB 6405 would require the state’s Administrative Office of the Courts working with the executive branch’s Office of Financial Management develop fiscal impact notes for decisions with an impact of over $500,000 to either state/local government or individual people or businesses.
Both bills are currently pending in committee.
A 2015 plan to create a Tax Court in Washington (discussed here) composed of sitting Court of Appeals judges was hobbled with concerns that the state’s constitution didn’t give the legislature the power to create such a court. Now the 2017 version of the plan is back, this time with a constitutional amendment and some changes.
SJR 8209 amends the state’s judiciary article to authorize the creation of a Tax Court and spells out in general its jurisdiction. It provides that decisions of the Tax Court would go directly to the state supreme court. Finally, it provides that the number, election, terms, and compensation of Tax Court judges would be left to the legislature.
SB 5866 fleshes out SJR 8209’s provisions and appears to be similar to the 2015 plan. It abolishes the existing State Board of Tax Appeals in favor of the new Tax Court.
The Court would be made up of two “departments”.
- The Main Department would consist of 3 judges who may individually or as a panel hear tax appeals. All decisions of the Main Department would have to be rendered within 6 months of submission, although the court could extend this for good cause an additional 3 months.
Unlike the 2015 plan, which called for using Court of Appeals judges, the 2017 plan would have the 3 judges elected to the Court in their own right to 6 year terms. It appears the judges would be elected by Court of Appeals district.
The judges would have to have “at least five years’ experience as an attorney practicing in Washington state and local tax law.” A similar provision created some controversy in 2015 when it was questioned who would determine whether a person met this requirement.
- The Commissioner Department would be for “cost-effective and informal” reviews and would include a voluntary mediation system. Commissioners would be appointed by the judges of the Main Department.
A hearing on the implementing legislation (SB 5866) is set for tomorrow (March 14) in the Senate Law & Justice Committee. A hearing on both the bill and constitutional amendment are set for March 16.
Washington State’s clerks are currently under statutory obligation that
In the performance of his or her duties to conform to the direction of the [Superior] court
HB 1396 and SB 5327 as filed at the request of the state’s court clerks, however, would change this to read that clerks need only
support the court in the performance of the courts’ statutory duties
During testimony this week the head of the Superior Court Judges Association voiced objected to this provision and the bill was held over in anticipation of an amendment on this issue.
I mentioned a few days ago the constitutional amendment in Florida to allow that state’s legislature to overturn state court decisions striking down state laws by two-thirds vote of the legislature.
Washington State’s legislature is attempting to go one step beyond Florida and enact by statute a provision to allow the legislature to overturn that state’s appellate courts by a simple majority vote.
HB 1072 of 2017, the “Balance of Powers Restoration Act” dedicates several paragraphs toward critiquing judicial review and finds the executive and legislative branches are, in effect, not obligated to follow court decisions striking down laws as unconstitutional.
Instead of judicial review, HB 1072 would set up a three prong process to declare that
The legislature determines, declares, and affirms that …… (the act designated by bill number and chapter number as indicated in the session laws, whether codified or uncodified) as enacted is constitutional, the opinion of the judiciary notwithstanding.
- If the Washington Supreme Court or Court of Appeals finds any legislative act violates the state constitution, the House and Senate are to meet in special session (if out of session) or take the case up (if in session or at start of next session).
- If the House and Senate both vote by a simple majority to affirm the constitutionality of the legislative act, “the legislative determination is effective immediately, and the legislative act under consideration is binding on all persons affected by it from the effective date of the act, notwithstanding the opinion of the judiciary, but the decision of the case remains binding on the parties to it.”
- The legislature’s vote itself would be subject to a popular referendum that could override the legislature (i.e. uphold the court’s decision) by simple majority vote.
HB 1072 has been filed in the House Judiciary Committee.
The latest iterations of efforts to ban state courts from using foreign or international law in general, and sharia law in particular, appear to be stalling in most states. Since last month’s update there have been three pieces of activity, within only 1 bill moving.
Georgia: The House yesterday passed a heavily amended version of HB 171. As introduced, the bill provided
Any tribunal ruling shall be void and unenforceable if the tribunal bases its ruling in whole or in part on any foreign law that would deny the parties the rights and privileges granted under the United States Constitution or the Georgia Constitution.
As amended the bill adds to an existing list of items (O.C.G.A. 9-10-31.1) to be considered by a court when considering the issue of venue and the doctrine of forum non conveniens.
In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors
whether the forum outside of this state provides for impartial tribunals and procedures that are consonant to the requirements of due process of law as required by the Constitutions of the United States and the State of Georgia.
The bill was approved 165-0.
In Mississippi, which already enacted a foreign law ban in 2015, legislators attempted to enhance the existing law. SB 2400 would have allowed courts to award attorney’s fees to any party opposing recognition or enforcement of foreign law. SB 2595 specifically targeted the use of sharia law in divorce and child custody cases. Both bills died in committee.
Finally, a bill was introduced in Missouri (HB 2507) that dealt with the subject as well.
Full list of bills below the fold.
Continue reading Bans on court use of sharia/international law: GA House approves modified bill; Mississippi bill to ban sharia in divorce cases dies
Three bills pending in the Washington Senate focused on the state’s judiciary have been effectively killed for the session. The three bills were
- SB 5449 would have created a tax division of the Court of Appeals. It was approved by the full Senate in April 2015 but returned to the Senate at the start of the 2016 session. The bill was discussed here and here.
- SB 6255 As introduced, the bill required judges recuse in cases in which they received $50 from party/attorney/lawfirm in prior 3 years. As amended, it requested the state’s judicial disciplinary commission create a rule for mandatory recusal for $1000 in contributions. The bill was discussed here.
- SJR 8205 would have amended the state constitution to required justices of the Supreme Court be elected by district (four justices from District 1, three from District 2, and two from District 3)
On February 25 the bills were officially sent to the Senate Rules “X” file which refers not to the saga of FBI agents Mulder and Scully but according to the Washington Legislature’s website is how the House or Senate Rules committees kill a bill (“The House and Senate Rules Committees may place bills that will go no further in the process on the “X-file.””)
An anticipated plan by Georgia’s governor to expand the state’s supreme court from 7 to 9 members discussed here and here has finally been filed. HB 927 would make a host of changes in addition to the expansion, including altering the jurisdiction of the Court of Appeals to take over many of the cases currently heard directly by the Supreme Court. The expansion plan specifically provides the vacancies would be filled by the governor; an election in November 2018 would be held for the seats as well.
This is the third time in the last decade the legislature has attempted to increase the Georgia Supreme Court (discussed here).
Georgia now joins Arizona and Washington in the list of states attempting to change the composition of their respective courts of last resort.
- In Arizona the effort to expand the state’s Supreme Court from 5 to 7 members (HB 2537) may go before the full House this week. An effort to place it on the House Consent Calendar was rejected yesterday.
- In Washington, legislators are attempting to reduce the state’s Supreme Court from 9 to 5 members (HB 2784).
A Washington bill to require judges recuse from cases in which they received campaign contributions from a party or attorney has been amended into a request and with a higher contribution limit.
SB 6255 as introduced, first discussed here, would have required the state’s Commission on Judicial Conduct discipline judges who did not recuse when they had received $50 in campaign contributions from parties or attorneys.
SB 6255, as amended and approved by Senate Law & Justice Committee last week, makes two major changes. First, the mandate to recuse has turned into a request that the Commission on Judicial Conduct create such a mandatory recusal rule. Second, the requested threshold has been increase from $50 to $1000. The higher threshold is consistent with a proposal being pushed by at least some members of the Washington House.
SB 6255 as amended now goes to the Senate Rules Committee.
Efforts to force members of the Washington state supreme court off the bench via legislation appear to be increasing, including a term limits proposal and a plan to declare 4 seats on the court simply vacant.
First, some background:
The Washington State constitution (Art. IV, Sec. 2) provides for a 5-member supreme court, but gives the legislature the power to increase its membership. The legislature has done so, creating the current 9-member court in the early 1900s (RCW 2.04.070)
Art. IV, Sec. 2: The supreme court shall consist of five judges, a majority of whom shall be necessary to form a quorum, and pronounce a decision…The legislature may increase the number of judges of the supreme court from time to time and may provide for separate departments of said court.
RCW 2.04.070: The supreme court, from and after February 26, 1909, shall consist of nine judges.
Despite the constitutional provision several members of the House want to declare the existing 9-member court unconstitutional and have introduced the “We Want a Constitutional Court Act.” (HB 2784) The bill amends 2.04.070 to read
The supreme court shall consist of five judges as required by Article 4, section 2 of the state Constitution.
It also provides all 9 current members of the court must immediately face one another in an election to fill the 5 seats; the terms of the 4 losing justices would end immediately after the election.
At the same time a constitutional amendment to term limit and reduce the terms of the Washington supreme court has also been filed in the Washington House. Under HJR 4217 justices of the court would see their terms cut from 6 years down to 4 years. In addition, justices would be limited to two terms, for a total of 8 years. Unlike the proposal currently in the Florida House which specifically applies only prospectively, HJR 4217 does not indicate one way or the other if it would apply to the current court. Such a retroactive plan was rejected by Colorado voters in 2006. If applied retroactively, the amendment could force several members of the court off the bench.
HJR 4217 has been filed in the House Judiciary Committee.
As I noted last July 2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of sharia or foreign/international law. 2016 looks to pick up where 2015 left off with a raft of new legislation introduced in 12 states. Of note:
Continued reference to sharia in particular
Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (South Carolina HB 3521 as introduced; Missouri HJR 69). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. Perhaps as a result the version adopted by the South Carolina House last week eliminated the word “sharia”. That ruling has not stopped Missouri’s proposal, which is practically a verbatim copy of the Oklahoma 2010 proposal struck down by the Tenth Circuit.
Missouri HJR 69 of 2016
The courts provided for in this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of Missouri, the United States Code, federal regulations promulgated pursuant thereto, and if necessary the law of another state of the United States, provided the law of the other state does not include sharia law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or sharia law. The provisions of this section shall apply to all cases before the respective courts, including but not limited to cases of first impression.
Oklahoma HJR 1056 of 2010
The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law , in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
Threat of impeachment
Also of note is a West Virginia version of this bill which threatens impeachment for any judge who violates the provision (“Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is void, is appealable error and is grounds for impeachment and removal from office.”)
List of proposals and their current status below the fold.
Continue reading Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV